Insights

Arrest and Conviction Record Discrimination

The following is for informational purposes only and is designed to help provide information regarding some common questions regarding arrest or conviction record discrimination in Wisconsin. The content of this site is not intended as legal advice. If you encounter a situation involving arrest or conviction record discrimination, you should contact an attorney.

What is the difference between an arrest record and a conviction record?

If you have had an encounter with law enforcement, you probably have an arrest record. More specifically, under Wisconsin Statute § 111.32(1), arrest record includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

If you have been convicted, paid a fine, or otherwise been punished for a crime, you probably have a conviction record.

More specifically, under Wisconsin Statute § 111.32(3), conviction record includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.

Do I have to identify my conviction on a job application asking whether I have been convicted of a crime?

Yes. Failure to identify a conviction when requested by an employer may justify a denial of employment or termination if the conviction is discovered. In other words, if you do not list your conviction in response to an employment application question asking about your convictions, the employer may be able to refuse to hire you or later terminate you for failing to honestly complete your application. See Miller Brewing Co. v. ILHR Department, 103 Wis. 2d 496, 504, 308, N.W.2d 922 (1981).

Do I have to list an arrest on a job application asking whether I have been arrested for a crime?

Usually, no. Generally, an employer may not ask about a past arrest that did not lead to a conviction. However, an employer may ask about pending arrests. Also, an employer may ask about past arrests when there is a requirement that you be bondable under a standard fidelity bond or similar bond. A fidelity bond is like an insurance policy that protects against theft by an employee. Some laws require that employers obtain a fidelity bond for employees in certain positions. Some employers have a policy or practice that requires that their employees be bondable.

If a job application asks you to state whether you have ever been arrested and the position does not require you to be bondable, the application may violate Wisconsin law.

What happens to my conviction record if it is expunged?

Once a conviction is expunged it is required to be removed from CCAP (the website for Wisconsin circuit court records). However, it will still appear on a Wisconsin Department of Justice Crime Information Bureau (CIB) background check. The CIB report should indicate that the sentence included a special disposition pursuant to Wis. Stat. § 973.015.

Do I have to list a conviction on a job application asking whether I have been convicted of a crime if my conviction record was expunged?

The Wisconsin Supreme Court has issued a decision in the case of State v. Hemp (2014 WI 129), which states:

Thus, Wisconsin’s expungement statute indicates our legislature’s willingness (as expressed by the plain language of the statute) to help young people who are convicted of crimes get back on their feet and contribute to society by providing them a fresh start, free from the burden of a criminal conviction. Through expungement, circuit court judges can, in appropriate circumstances, help not only the individual defendant, but also society at large.

This language suggests that an applicant does not have to report an expunged conviction in response to an employer’s question about whether they have been convicted of a crime.

If you believe that an employer has used an expunged conviction record to terminate you or deny you employment, you may want to contact an employment attorney.

Can an employer refuse to hire me because of an arrest that is pending?

Maybe. If the arrest happened in the past and you were not charged with an offence or crime, the charges were dismissed, or you were acquitted, an employer may not use the fact of the arrest, dismissed charge, or acquittal to deny you employment. In fact, they may not even ask about such an arrest. There is an exception – if the job requires you to be bondable under a standard fidelity bond and you are not bondable because of the arrest, the employer may deny you employment. See Wisconsin Statute § 111.335(1)(a).

If you have a pending criminal charge and the circumstances of the charge substantially relate to the circumstances of the particular job, an employer may refuse to hire you. See Wisconsin Statute § 111.335(1)(b). However, if you have a pending criminal charge but the circumstances of the charge do not substantially relate to the circumstances of the particular job, an employer may not refuse to hire you based on the pending charge.

Can my current employer terminate me because of a pending arrest or criminal charge?

Generally, no. If you have a pending charge that substantially relates to the circumstances of your current job, your employer may suspend you from employment until the criminal case is resolved. See Wisconsin Statute § 111.335(1)(b).

Can an employer terminate me or refuse to hire me because of my conviction record?

Maybe. If the circumstances of the conviction substantially relate to the circumstances of the particular job, an employer may terminate you or refuse to hire you. If the circumstances of the job do not substantially relate, then an employer may not terminate you or refuse to hire you because of your conviction record.

HOWEVER – there are some exceptions to these general rules. For example, there are special rules that apply to healthcare and childcare/educational workers, security personnel, private investigators, individuals who install burglar alarms, individuals with convictions for using false credentials, and employees of businesses that sell alcohol. You may want to contact an employment attorney to determine whether there are any specific exceptions that apply to your situation.

My conviction substantially relates to the circumstances of my job, but it was many years ago, can an employer terminate me or refuse to hire me because of my old conviction?

Probably. If the circumstances of the conviction substantially relate to the circumstances of the particular job, an employer generally may terminate you or refuse to hire you, regardless of the age of the conviction.

However, every case presents different facts and must be analyzed individually. For instance, the following excerpt comes from a case litigated by James P. End of First, Albrecht & Blondis, for an individual who had been convicted of assaulting his girlfriend 20 years earlier:

Indeed, the fact that twenty years have elapsed since the conviction without the complainant’s having reoffended, during which time it can be presumed that he has come into contact with females, would seem to indicate that he does not pose a general threat to all females, such that the mere presence of females in the workplace would create a risk of recidivism for him.

I think I have been discriminated against, what can I get if I pursue a claim?

The damages and relief potentially available under the Wisconsin Fair Employment Act to an employee or applicant who has been discriminated against based on arrest or conviction record include:

Back pay (with interest)– the Department of Workforce Development can order your employer to pay you the wages you lost because of the discriminatory conduct, plus interest at 12% per year.

Benefits – the Department of Workforce Development can order your employer to pay you any benefits, such as employer contributions to retirement plans that you missed because of discrimination.

Reinstatement– If you were denied employment or terminated, the Department of Workforce Development can order that you be hired or reinstated by an employer that discriminated against you.

Injunctive relief– If you prevail on your claim the Department of Workforce Development will issue a written decision stating that the employer discriminated against you. The employer may be ordered to cease and desist from further discriminatory conduct.

Attorney’s fees – If you prevail on your claim of discrimination, the employer often will be ordered to pay your reasonable attorney’s fees.